GOVINDA Vs. JAIRAM DAS

JUDGEMENT

(1.) ON 27-4-1926, decree was passed by the Judge of the Small Cause Court, Nagpur, ex-parte against the present defendant-applicant, Govinda. On 16-6-1926, Govinda presented an application to set aside the ex-parte decree on the ground that he had been ill on the date of hearing. Under the proviso to Section 17 (1) of the Provincial Small Cause Courts Act it was incumbent on the applicant, at the time of presenting his application, either to deposit the amount due by him under the decree or to give security for the performance thereof. He did not furnish such security along with the application, and it is noticeable that in the main application nothing was said about security. Objection was taken on 16-9-1926 by the plaintiff in this respect and, thereupon, the present applicant filed another written statement to the effect that he had been ready to furnish security but the Execution Clerk, on the 16th of June, had been busy and directed him to furnish security on the date of hearing, viz., the 16th of September 1926.

(2.) IT is noticeable in this connexion that the so-called affidavit of 16-9-1926 has not been sworn to before the requisite Officer and there is, in reality, no proof whatever that any such episode with the Execution Clerk of the Court occurred on the 16th of June, as the applicant alleged for the first time some three months later. However this may be, the lower Court held that the provisions of Section 17 of the Small Cause Courts Act were mandatory, and as regards the possibility of applying Section 5 of the Limitation Act to the case, the Judge of the Small Cause Court was of opinion that it was doubtful whether the said section of the Limitation Act could be made use of in the circumstances of the case. In coming to this conclusion, the Judge of the Small Cause Court relied on an obiter of Sanderson, C.J., in Abdul Sheikh v. Mohammad Ayub 1920. 24 C.W.N. 330. In the said case the learned Chief Justice expressed doubt whether Section 5 of the Limitation Act applied at all to such a case as at present in view of the fact that the main application was made within time. The learned Chief Justice, however, did not discuss this point in detail, and, with all deference, I prefer the view of Oldfield and Rao, JJ., taken in Sudalaimuthu Kudumban v. Audi Reddiar A.I.R. 1922 Mad. 186 for the reasons stated in the said judgment. A similar view has also been taken by Ramesam, J., in Koilpillai Samban v. Sappanimuthu Samban A.I.R. 1923 Mad. 354 : [cf. also Munna Lal v. Radha Kishan 1915. 37 All. 591. In view of the law I take, therefore, it was incumbent on the lower Court to exercise in one direction or another the discretion which it had under Section 5 of the Limitation Act. It is clear from the terms of the lower Court's order that its opinion was that Section 5 could not possibly apply at all, but that was not so, The lower Court has, therefore, failed to exercise a jurisdiction which was vested in it and the case must go bask to that Court for decision on the merits of whether or not it should exercise a discretion in favour of the applicant under Section 5 of 'the Limitation Act on the allegations put forward by him.